What’s For The Plan, What’s Supplementary?

A blog post in two halves:

– the increasing risk that SPDs (supplementary planning documents) and other policy documents will be struck down by the court if their policies should in fact be in a local plan or other DPD (development plan document)

– in the wake of the draft London Plan, a reminder that it should only contain “strategic” policies, as well as another look at the affordable housing and viability SPG (supplementary planning guidance), now subject to a judicial review.

Bottom drawer plans

It is tempting for local planning authorities to fill policy gaps or update their policies by way of an SPD given that there is only a consultation requirement and no independent examination, or indeed by more informal plans. But care is needed. There are stringent rules as to what is appropriate for inclusion in an SPD or other policy document and what needs to be in a DPD.

The issues turn on interpreting the Town and Country Planning (Local Planning) (England) Regulations 2012 about which Jay J says:“Frankly, those responsible for these regulations should consider redrafting them”.

Gilbart J agrees “with Jay J that the drafting of these Regulations is very poor and can lead to confusion, or to lengthy arguments on interpretation with not much regard being had to the realities of development control“.

You’ve been warned.
Regulations 5 and 6 read as follows: “5. (1) For the purposes of section 17(7)(za)(1) of the Act the documents which are to be prepared as local development documents are—

(a) any document prepared by a local planning authority individually or in cooperation with one or more other local planning authorities, which contains statements regarding one or more of the following -

(i) the development and use of land which the local planning authority wish to encourage during any specified period;

(ii) the allocation of sites for a particular type of development or use;

(iii) any environmental, social, design and economic objectives which are relevant to the attainment of the development and use of land mentioned in paragraph (i); and

(iv) development management and site allocation policies, which are intended to guide the determination of applications for planning permission;

(b) ………………………………………………………………

(2) For the purposes of section 17(7)(za) of the Act the documents which, if prepared, are to be prepared as local development documents are—

(a) any document which—

(i) relates only to part of the area of the local planning authority;

(ii) identifies that area as an area of significant change or special conservation; and

(iii) contains the local planning authority’s policies in relation to the area; and

(b) any other document which includes a site allocation policy.

6. Any document of the description referred to in regulation 5(1)(a)(i), (ii) or (iv) or 5(2)(a) or (b) is a local plan.”
So if a policy document meets any of the criteria in Regulation (1) (a) (i), (ii) or (iv) or 5 (2) it is in reality a local plan and will be at risk of being quashed if the procedures stipulated for a local plan have not been followed. This means that there are huge consequences for authorities whose policy documents fall within any of these criteria – rightly so, in my view (albeit with sympathy for authorities in relation to the difficulties inherent in working out whether a policy falls for instance within Regulation 5 (1) (a) (iii) – ok – or (i), (ii) or (iv) – not ok!).
In the words of Gilbart J:“It has always been the case since the original TCPA 1947 that the policies of a proposed development plan should be the subject of consultation, and where objection is made, independent examination. PCPA 2004 and the related LP Regs 2012 made considerable changes to the mechanics of the system for bringing forward policies, whether those which have the status of development plan policies for the purposes of the legislative code, or have a less significant role.Albeit that the procedures for the adoption of a development plan have altered over the years, it is still a fundamental feature of the system that policies which form part of the development plan must be subjected to proper scrutiny, including independent scrutiny.”
In William Davis, Gilbart J held that the relevant housing mix policy “sought to prescribe different percentages for all house sizes, and as between market and affordable housing. It related to “the development and use of land which the local planning authority wish to encourage during any specified period” and therefore fell within Reg 5(1)(a)(i). But it also contained “development management and site allocation policies, which are intended to guide the determination of applications for planning permission” and therefore also engaged Reg 5(1)(a)(iv). On that basis it could only be promoted by way of a local plan as defined.” It was therefore quashed.
In Skipton, Jay J noted:
“Affordable housing policies are ordinarily located in local plans because they relate to the development and use of land“.
He found that even if he was wrong about the affordable housing contributions interim policy document being in fact a DPD (and failing the procedural requirements of a DPD), nor was it an SPD – policies in an SPD must be supplementary to policies in a DPD. There were no affordable housing policies that has been saved in Craven’s local plan: “it cannot logically supplement a black hole“.
He concluded:“In my judgment, the correct analysis is that the NAHC 2016 contains statements in the nature of policies which pertain to the development and use of land which the Defendant wishes to encourage, pending its adoption of a new local plan which will include an affordable housing policy. The development and use of land is either “residential development including affordable housing” or “affordable housing”. It is an interim policy in the nature of a DPD. It should have been consulted on; an SEA should have been carried out; it should have been submitted to the Secretary of State for independent examination.”
There is a final coda to Jay J’s judgment:“…I am not oblivious to the practical difficulties facing local planning authorities assailed by constant changes in the legislative regime and national policy. However, a local planning authority is required to keep its local plans under review. The correct course is to press on with the timeous preparation of up-to-date local plans, and in the interregnum between draft and adoption, deploy these as material considerations for the purpose of the rights and duties conferred by the 2004 Act.”

I take from these two cases that we should be scrutinising carefully policies that authorities seek to rely on that have not been tested as DPD policies undergoing proper independent scrutiny. For example management policies, site allocation policies and policies encouraging the development and use of land should all be restricted to DPDs so that they can be properly examined as the legislation requires. London: another kettle of fish

The above analysis is relevant to London boroughs but the position of the London Mayor is different, given that his plan making powers are not set out in the 2012 Regulations but in the Greater London Authority Act 1999. As I set out in my 23 April 2017 blog post Make No Little Plans: The London Plan, policies in the London Plan can only deal with “matters which are of strategic importance to Greater London”.
The draft London Plan was of course published on 29 November 2017. As you read its 500 plus pages, ask yourself in relation to each policy whether it truly does meet that “strategic importance to Greater London” test or are we seeing a further boxing in of the policy making powers which should be left to the boroughs?
Partly to seek to bring about changes ahead of progress with this plan and partly to seek to set out his required approach to a level of detail that would be wholly inappropriate for a “strategic” document, the Mayor has set out his approach to affordable housing and viability in a detailed, non statutory, SPG (the Greater London Authority Act does not provide for statutory SPDs). I covered the document in my 20 August 2017 blog post 20 Changes In The Final Version Of The London Mayor’s Affordable Housing & Viability SPG.
A legal challenge to the validity of the SPG has been brought by four retirement living providers (McCarthy & Stone, Churchill Retirement Living, Pegasus Life and Renaissance Retirement), based on three grounds:
– that the SPG “unlawfully represents substantive new policy, without going through the independent examination process which should apply to policy changes of this kind“.

– lack of strategic environmental assessment

– breach of the Equality Act 2010 and other legislative requirements “since it introduces an unjustified and disproportionate new regulatory hurdle which leads to differential treatment for the elderly and women seeking to have their housing needs met in London“.

Whether through this litigation or through the examination process that lies ahead for the London Plan itself, some interesting analysis lies ahead as to (1) what are “matters of strategic importance to Greater London” and (2) the extent to which the Mayor can lawfully go faster, or into a greater level of detail, in supplementary planning guidance.
The examination process for DPDs, and indeed for the London Plan, can sometimes appear superficial in relation to individual policy issues, but at least there is some independent scrutiny. On the other hand where planning applications are refused on the basis of policies that the decision-maker has itself both made and approved, the position can defy any common sense notion of gravity. The authority has simply pulled itself up by its own bootstraps.
Simon Ricketts, 1 December 2017
Personal views, et cetera